FEDERAL COURT OF AUSTRALIA

Sopikiotis v Owners Corporation RP017740 [2013] FCA 353

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the respondents’ costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    Maria Sopikiotis applies for leave to appeal from the judgment of a Federal Magistrate delivered on 22 February 2013 refusing to extend the time in which to apply for a review of a sequestration order made by a Registrar. This application for leave to appeal is made pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

2    Ms Sopikiotis relies on her affidavit affirmed on 4 March 2013. She has also filed a document headed “Notice of appeal from the Federal Magistrates Court”.

3    The respondents oppose the grant of leave to appeal. They rely on the affidavit of Richelle Berman sworn on 20 March 2013. There is a further affidavit bearing this proceeding number but apparently intended to be filed in proceeding VID 1046 of 2012. This is an affidavit of Ned John Mahony sworn on 20 March 2013.

BACKGROUND

4    On 5 July 2011, in the Federal Magistrates Court, a Registrar made a sequestration order against the estate of Ms Sopikiotis. The second respondent, Peter Robert Vince, was appointed trustee of her bankrupt estate.

5    On 26 September 2012, Ms Sopikiotis applied for a review of the Registrar’s decision out of time. She also sought an extension of time in which she might make her review application.

6    On 22 February 2013, a Federal Magistrate refused to grant the extension of time that Ms Sopikiotis sought. I discuss his Honour’s reasons below.

7    On 4 March 2013, Ms Sopikiotis filed an application for leave to appeal against his Honour’s decision in this Court.

8    For the reasons stated hereafter, I would refuse this application for leave to appeal.

DECISION OF THE FEDERAL MAGISTRATE

9    The learned Federal Magistrate set out part of the lengthy history of this matter in his reasons for judgment: see Sopikiotis v Owners Corporation RP017740 & Anor [2013] FMCA 122 (“FMC 2013 Reasons”) at [3]-[8]. In this Court, Ms Sopikiotis did not challenge his Honour’s account. The relevant paragraphs read as follows:

Relevantly, on 16 December 2009 the petitioning creditor issued proceedings in VCAT. What was sought was payment of body corporate debts, some of which clearly predated 16 December 2003. However, it is clear on the materials filed that over $8,000 worth of debt had arisen during the period from 2003 to 2009. It is clear there has been a long-running dispute between the applicant and the creditor going back at least to 1995, as is apparent from the applicant’s affidavit filed on 29 November 2012 and the materials exhibited to it.

On 21 April 2010, Mr Davies, Member of VCAT, made orders in favour of the creditor for $16,691.22 together with interest and costs. The applicant did not attend. A Bankruptcy Notice based upon that order was issued on 18 August 2010 and served on 18 February 2011. It is clear from the affidavit material filed that the creditor had had great difficulty serving Ms Sopikiotis. Indeed, the applicant denies ever having been served with the Bankruptcy Notice but it should be noted that after the Petition was filed on 13 April 2011, the applicant must have become aware of the Bankruptcy Notice as she attended the hearings before Registrar Caporale. As I have already stated, the Sequestration Order was made by the Registrar on 5 July 2011.

The applicant did not file a statement of affairs and as a result on 21 February 2012 her Trustee in Bankruptcy filed a proceeding in the Federal Court. That sought, relevantly, that the applicant be ordered to provide a statement of affairs and vacant possession of the property where she lives. Bromberg J had ordered the applicant to file a statement of affairs. It is, however, clear that the applicant has still, even now, not adequately complied with that obligation.

On 21 May 2012, the applicant applied to VCAT to review the decision of Member Davies given on 21 April 2010. That application was dismissed by VCAT on 21 June 2012, as is apparent from exhibit RB-9 to the affidavit of Richelle Berman, solicitor, sworn on 10 December 2012.

I note that at paragraph 26 of her affidavit, Ms Berman deposes that she was present at the hearing at VCAT and that the presiding Member was not satisfied with the applicant’s excuses for not having been at the original hearing, and the member also expressed a view that the application had insufficient merit to succeed. On 18 July 2012, the applicant applied to the Supreme Court to review the decision of VCAT and on 10 August 2012, Lansdowne AJ refused the application. The decision is at RB-11 to Ms Berman’s affidavit. It should be noted that from that decision it is clear that the applicant knew of the VCAT decision of Member Davies from at least May 2011 when she received the Petition. I further note, as this is a matter also referred to in some detail in the materials, that Lansdowne AJ accepted that VCAT had sent documents to the wrong address for the applicant.

On 21 November 2012, Bromberg J ordered vacant possession of the property but that order has been appealed. This application for review, of course, had already been filed on 26 September 2012.

10    As his Honour observed, in determining whether or not an extension of time should be granted, it was incumbent on him to consider any explanation for the delay and the prospects of success on review if there were an extension of time.

11    His Honour found the explanation that Ms Sopikiotis gave for her delay in applying for a review to be unconvincing and unsatisfactory. As to the explanation for the delay, his Honour said (at [9]-[13]):

… In oral submissions made before the Court, the applicant said first, that she thought that the creditor had followed correct legal process but now understood that not to be the case; second, she had spent considerable periods of time obtaining the transcript of the proceeding before VCAT, which I note was not available before Lansdowne AJ; third, she asserted that the Trustee had withheld information including not forwarding to her affidavits other than those of the creditors.

Before Riethmuller FM at transcript p3, the applicant put the matter in much the same terms. In response to a question from his Honour, “Were you aware that you faced this application this morning?”, Ms Sopikiotis replied:

Yes, and I have filed an affidavit, your Honour, in relation to obtaining transcripts. The reason why I’m seeking in my application to waive the time limit is that information became available to me in May 2012 for a Federal Court hearing, and I believe that if all the facts would have been known at the time back in July of 2011, the sequestration order would have never been made. There’s information that only came to light at the middle of this year and it has taken time to obtain that information, to get transcripts from VCAT, to check the files, to search the files, obtain documents, to get copies of affidavits that were never given to me at the sequestration hearing on 5 July, but were filed on that date in court, and, therefore, I’m seeking for you to waiver that time. So that if all the facts had have been known at the date of that hearing, that sequestration order would have never been made.

The applicant’s affidavit filed on 29 September 2012 refers to the proposition that the debt on which the Petition was founded was under the statutory minimum of $5,000 and, furthermore was, statute barred, and the affidavit also refers to the difficulty obtaining transcripts from VCAT. None of the applicant’s subsequent affidavits refers to the explanation of delay.

I would make the following points. The applicant has had much to say by way of complaints against the Trustee and all the relevant lawyers who have been involved in the matter but it is clear that the applicant knew of the Sequestration Order in July 2011. She also knew of the VCAT debt and the Bankruptcy Notice by May 2011. She further knew that the Trustee was actively pursuing the matter by February 2012 when the proceeding in the Federal Court started.

I do not find the applicant’s explanation for delay either convincing or satisfactory. I note, in particular, that the applicant maintains, and has always maintained, that she has been solvent. Clearly, she should have applied to set aside the Sequestration Order if that was so at some antecedent point.

12    As to the prospects of success of the application that Ms Sopikiotis wished to bring, his Honour took the view (at [14]) that five issues fell for consideration, namely:

… [F]irst, was the Bankruptcy Notice stale when it was served? Second, was it statute barred? Third, was the sum involved under $5,000? Fourth, were any fees ever, indeed, owing to the creditor? … The fifth issue is that the applicant asserts that she is, in any event, solvent.

Ms Sopikiotis also raised some other issues but the Federal Magistrate did not consider them relevant (at [15]-[16]).

13    The Federal Magistrate held that the bankruptcy notice was not stale when it was served. Specifically, his Honour held that the bankruptcy notice, which was issued on 18 August 2010 and served on 18 February 2011, was served within six months of its issue as the law required. His Honour said (at [18]-[23]):

It is agreed that the Bankruptcy Notice was issued on 18 August 2010. I accept that it was served on 18 February 2011. That evidence was accepted by the Registrar and I accept it too. Clearly, it was left at the applicant’s last known address within the operation of Bankruptcy Regulation 16.01(c). This brings us to regulation 4.02A which I will read out.

A bankruptcy notice must be served within:

(a)    The period of 6 months commencing on the date of issue of the bankruptcy notice.

There is then an alternative which is not relevant. Section 36 of the Acts Interpretation Act 1901 until 27 December 2011 read as follows:

Where in an Act any period of time, dating from a given day, act, or event, is proscribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or the day of such act or event.

This, in my view, disposes of the issue. The six months in this case commences on a given day, in other words, the day of issue. If one excludes 18 August 2010, it is quite clear that the Bankruptcy Notice was served within six months. The definition of “months” in the Acts Interpretation Act is quite clear. If one looks at s 2G of that Act, it is plain that the operation of it is such that the six month period would have expired after, but not on, the date of service itself. I also note that the use of the phrase “within” suggests exclusion of the first day. In this regard, I refer to Pearce and Geddes “Statutory Interpretation in Australia” 6th Edition at 229 to 230. There is, I would say, no justification for calculating the running of time by individual days as the applicant’s submissions assert.

I should note also that the amendment to the Acts Interpretation Act in December 2011 is not a procedural one. It might affect substantive rights. Dixon CJ said in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 262 at [267]:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.

In my view, to construe the amendment to the Acts Interpretation Act effected in December 2011 other than affecting substantial rights in these circumstances would be not possible. However, if I am wrong and, in the alternative, the amended Act applies, the point about “within” still applies and the first day would still be ignored. I note in passing two cases in this Court, namely Labraga v Exception Holdings Pty Ltd (In Liq) [2009] FMCA 397 at [23], a similar situation passed without comment from Driver FM and, likewise, in Glenlogan Park Pty Ltd v Schofield [2007] FMCA 2059 at [2] and [6] from Wilson FM.

Given the findings I make in this regard, it is not necessary to deal with the first respondent’s submissions that the Federal Magistrates Court (Bankruptcy) Rules 2006, which are favourable to the respondents, operate so as to exclude the operation of the Acts Interpretation Act.

14    As to the other issues (apart from claimed solvency) affecting an assessment of the prospects of success, his Honour stated (at [24]-[27]):

I will deal next with the three matters that to an extent relate to the VCAT criticisms namely, whether the matter was statute barred, less than $5,000 and/or that the fees were never owing. Dealing with the matter of the $5,000 first, I am afraid the applicant is clearly wrong. $8,317 was not statute barred. The first respondent’s written submissions filed on 18 December 2012 assert that it is clear that if after investigation the Court finds the valid debt is less than the amount of the judgment that grounds the Petition, the Court will not interfere with the Sequestration Order unless the debt is less than the statutory limit.

It is sufficient to say that the cases the first respondent cites unquestionably support this proposition: see Olivieri v Stafford (1989) 24 FCR 413 at [428]-[432] per Gummow J and Re Longo [1995] FCA 1324; (1995) 57 FCR 523 at [530]-[531] per Cooper J.

The next issue is whether the matter was statute barred. As I say this is, in a sense, an interrelated point. It is clear, as the applicant submits, that some of the VCAT order related to debts that were over six years, old but what was left was still well over $5,000. In these circumstances, there is no need to deal with the respondents’ arguments that these debts were specialty debts and, therefore, not caught by the Statute of Limitations. I note that it would be open to the applicant to challenge the quantum of such debts with her Trustee in any event.

Next, the question as to whether the fees were ever owing. It should be remembered that this is not a final trial. It is a matter of considering the merits in an interlocutory sense as part of the consideration of the discretion to extend time. Although the applicant is adamant that no money was ever owing, it is clear the creditor has provided extensive accounts and documentation which prima facie would appear believable.

15    On the solvency issue, the Federal Magistrate stated (at [28]-[32]):

Next, I deal with the assertion that the applicant is solvent. This requires her to be able to pay her debts as and when they fall due, bearing in mind the slightly expanded operation of that proposition arising from the decision of Barwick CJ in Sandell v Porter where moneys may be readily available in any event.

The applicant dealt with this issue in her affidavit filed on 23 November 2012 in exhibit MS-12. Under the heading “Statement of Solvency” she wrote:

Income $13,000 per annum net, all household expenses are up-to-date, creditors Harrick Lawyers $60 per fortnight, Boroondara Council $100 per fortnight.

All the other creditors were disputed, although the amounts of their alleged debts were not disclosed. The applicant further set out the various payments she had more recently made and referred to her superannuation. In one of the incomplete statements of affairs at Court Book 122 that the applicant has provided, she asserts that her wages were $41,400. I note that a complete statement of affairs does not appear yet to have been executed. From exhibit CMC-14 to the affidavit of Christine Margaret Cantwell sworn on 29 June 2012 at Court Book 508, there is a list of proofs of debts in the total sum of $157,800. I accept that the applicant denies the validity of such proofs of debts, but their existence is clearly a relevant consideration.

Some of these proofs of debts are from major commercial entities such as the ANZ Bank and Credit Corporation Group. They must have at least some prospects of being correct.

I note that pursuant to s 52(2) of the Bankruptcy Act 1966, it is for the applicant to satisfy the Court that she can pay her debts if we reach that stage. On the materials filed, I am not satisfied that the applicant would be able to do so.

16    As a result, his Honour found (at [33]) that the matters that Ms Sopikiotis raised were “to an extent misconceived and/or of the most dubious merit”. His Honour concluded (also at [33]) that:

It is overwhelmingly clear, in my view, that I should not exercise my discretion to extend time for the applicant to bring her application for review of Registrar Caporale’s decision.

17    As stated already, Ms Sopikiotis seeks leave to appeal against the judgment of the Federal Magistrate refusing her an extension of time in which to seek review of the Registrar’s sequestration order.

GROUNDS ON WHICH LEAVE TO APPEAL IS SOUGHT

18    In her leave application dated 4 March 2013, under the heading “Grounds of application”, Ms Sopikiotis stated:

1.    The misapplication of a principle of law has been applied to:

2.    The Acts Interpretation Act 1901, ss 29, 36.

3.    Bankruptcy Regulations 1996 Reg 16.01(c), 4.02(A)

4.    Bankruptcy Act 1966 s 40(1)(g)

In her 4 March 2013 affidavit, Ms Sopikiotis set out her grounds in more detail.

19    In substance, Ms Sopikiotis’ principal argument was that the bankruptcy notice, upon which her alleged “act of bankruptcy” depended, was a nullity because the bankruptcy notice was not served within the time required by regulation 4.02A of the Bankruptcy Regulations 1996 (Cth) (“Bankruptcy Regulations”). In the alternative, she argued that: (a) there was insufficient evidence that service was validly effected; and (b) the form of the bankruptcy notice was incorrect because it stated that the creditor’s address was “C/- LMS lawyers. Level 5, 606 St Kilda Road, Melbourne, Victoria” and that the debt could be paid to “LMS lawyers. Level 5, 606 St Kilda Road, Melbourne Victoria 3004”.

20    Ms Sopikiotis further argued that:

(1)    the bankruptcy notice was used as a debt collection mechanism and that this use was an abuse of process;

(2)    the total debt amount as stated in the bankruptcy notice was incorrect and the actual amount was less than the statutory minimum imposed by s 41 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”);

(3)    the order made by the Victorian Civil and Administrative Tribunal (“VCAT”) was not a final order or judgment as required by s 40(1)(g) of the Bankruptcy Act; and

(4)    the Federal Magistrate erred in rejecting her explanation for the delay in seeking review.

CONSIDERATION

21    The parties accepted that the judgment that Ms Sopikiotis sought to appeal in this Court was an interlocutory judgment that required leave to appeal: see Federal Court Act, s 24(1A). In respect of a grant of leave to appeal from an interlocutory judgment, the two-part test is well-established. Leave should be granted if: (1) in all the circumstances the decision is attended with sufficient doubt to warrant being reconsidered by an appellate court; and (2) substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–399.

22    For the reasons I am about to state, I do not consider that the Federal Magistrate’s decision was attended by sufficient doubt to warrant it being reconsidered by an appellate court.

23    Leaving aside the inadequacy of her proffered explanation, to which I refer below, it was clearly open to the Federal Magistrate to conclude that there were insufficient prospects of success to justify an extension of time.

24    Ms Sopikiotis’ best point raised the question of whether or not the bankruptcy notice had been served within the requisite time. Pursuant to regulation 16.01(1)(c) of the Bankruptcy Regulations, the bankruptcy notice was served on Ms Sopikiotis by being left at her last-known address on 18 February 2011. Ms Sopikiotis argued that, since the notice had issued on 18 August 2010, the notice was not served within the time allowed by regulation 4.02A of the Bankruptcy Regulations. Regulation 4.02A provides:

A bankruptcy notice must be served within:

(a)    the period of 6 months commencing on the date of issue of the bankruptcy notice; or

(b)    any further period that the Official Receiver allows (whether within or outside that period of 6 months).

Ms Sopikiotis contended that the bankruptcy notice was not served on her with a 6-month period commencing on the date of issue of the notice, as regulation 4.02A required; and that the Federal Magistrate was wrong to reach the contrary conclusion. (Paragraph (b) is not presently relevant because no extension of time has ever been sought from the Official Receiver.)

25    The principles of statutory interpretation relating to Acts of Parliament are ordinarily applicable to delegated legislation, such as regulations: see, for example, Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 at 65; Legislative Instruments Act 2003 (Cth), s 13; Acts Interpretation Act 1901 (Cth) (“Acts Interpretation Act”), s 46. Section 13(1) of the Legislative Instruments Act 2003 (Cth) provides that:

(1)    If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:

(a)    the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

(b)    expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and

(c)    any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule-maker.

26    When the bankruptcy notice was issued and served, s 36 of the Acts Interpretation Act read as follows:

(1)    Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

(2)    Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.

27    Section 2G of the Acts Interpretation Act, as it then stood, provided that:

(1)    In any Act, month means a period:

(a)    starting at the start of any day of one of the calendar months; and

(b)    ending:

(i)    immediately before the start of the corresponding day of the next calendar month; or

(ii)    if there is no such day—at the end of the next calendar month.

28    Pursuant to s 36(1) and s 2G, as set out above, the 6-month period referred to in Regulation 4.02A(a) of the Bankruptcy Regulations is calculated exclusive of 18 August 2010 – being the date of issue of the notice—with the result that the service of the notice on 18 February 2011 is the last day within the time allowed.

29    This conclusion is fortified by the use of the expression “within”. In Morton v Hampson [1962] VR 364 at 365, a Full Court of the Supreme Court of Victoria said that:

The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day ...

Much the same approach was adopted in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 at 580. It is also referred to as the accepted approach in Pearce, DC and Geddes, RS, Statutory Interpretation in Australia (7th edition, 2011, LexisNexis Butterworths) at 238, [6.47].

30    Following the Acts Interpretation Amendment Act 2011 (Cth), s 36 of the Acts Interpretation Act was amended, with effect from 27 December 2011. As the Federal Magistrate concluded, the amendment did not affect the service of the bankruptcy notice that that had already taken place: see Acts Interpretation Act, s 7(2); Maxwell v Murphy (1957) 96 CLR 261 at 267.

31    Accordingly, there is no reasonably discernible error evident in the Federal Magistrate’s conclusion that the bankruptcy notice was served within the time allowed by regulation 4.02A of the Bankruptcy Regulations. Although it may be unnecessary to decide the issue definitively, I too would accept that the bankruptcy notice was served within the requisite time.

32    In this event, it was, as the Federal Magistrate observed, unnecessary to consider the first respondent’s submission on the timing point about the interaction of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) and the Federal Magistrates Rules 2001 (Cth). It seemed to me, at least provisionally, that there were a number of difficulties with this submission, which did not, in any event, have the benefit of argument.

33    As noted above, Ms Sopikiotis raised the question whether the bankruptcy notice was validly served on her. In this case, as already noted, on 21 April 2010, the petitioning creditor, Owners Corporation RP017740 (“Owners Corporation”), obtained an order in the VCAT against Ms Sopikiotis for the payment of $16, 691.22 together with interest and costs. The affidavit of Richelle Berman dated 10 December 2012, which was filed in the Federal Magistrates Court, supported the proposition that Owners Corporation took all reasonable steps to notify Ms Sopikiotis of the progress of the VCAT proceeding. Ms Sopikiotis did not attend the VCAT and she did not make any payment, as ordered, to Owners Corporation. I interpolate here that an application for review filed in VCAT on 21 May 2012 in respect of the 21 April 2010 decision was unsuccessful. A subsequent application to the Victorian Supreme Court for judicial review also failed.

34    Ultimately, on 18 August 2010, Owners Corporation had a bankruptcy notice issued claiming a total debt of $28,326.97. There were difficulties in effecting service of the notice but the evidence in the Federal Magistrates Court justified a finding that the notice was served on Ms Sopikiotis on 18 February 2011. I would therefore reject Ms Sopikiotis’ claim that there was insufficient evidence that the bankruptcy notice had been served on her. Further, there was no evidence before the Federal Magistrate or before me to justify Ms Sopikiotis’ claim that the issue of the bankruptcy notice involved an abuse of process.

35    In any event, while the claimed debt remained unpaid, Owners Corporation served a creditors petition on Ms Sopikiotis. There was sufficient evidence in the Federal Magistrates Court to justify a finding that the petition was served on Ms Sopikiotis and, indeed, she subsequently attended hearings regarding the petition.

36    A bankruptcy notice may issue on the application of a creditor who has obtained a final judgment or order (as described in s 40(1)(g) of the Bankruptcy Act) “for an amount of at least $5,000”: see Bankruptcy Act, s 41(1)(a). As noted, Ms Sopikiotis argued that the debts that founded the 21 April 2010 VCAT order and ultimately the bankruptcy notice were statute-barred since they had arisen more than six years before: see Limitation of Actions Act 1958 (Vic), s 5. As the 10 December 2010 affidavit of Richelle Berman (see [33] above) makes clear, however, even if some part of the debts were statute-barred, there remained a total sum of $8,317.12 (excluding interest and costs) that had been incurred between 1 May 2004 and 1 May 2009. Fee notices/arrears notices were exhibited to Ms Berman’s affidavit. There is no basis for saying that this amount was statute-barred. As the Federal Magistrate noted, there was therefore no basis to undo the sequestration order: see Olivieri v Stafford & Ors (1989) 24 FCR 413 at 429-432 and Re Longo: ex parte Longo (1995) 57 FCR 523 at 530. Further, it was, as his Honour said, unnecessary to consider whether or not the debts in question were specialty debts.

37    There is therefore no tenable basis to attribute error to his Honour in relation to his conclusion on these issues.

38    As already noted, Ms Sopikiotis also challenged the form of the bankruptcy notice on the basis that it stated that the creditor’s address was “C/- LMS lawyers. Level 5, 606 St Kilda Road, Melbourne, Victoria” and that the debt could be paid to “LMS lawyers. Level 5, 606 St Kilda Road, Melbourne Victoria 3004”. This argument was not apparently advanced in the Federal Magistrates Court, which might have been sufficient reason to reject its relevance on this application. It is unnecessary to take this course, however, because I consider that, in any event, Ms Sopikiotis’ submission would have been rejected. In Bank of Melbourne v Hannan (1997) 78 FCR 249, Northrop J held that, notwithstanding that a failure to state the creditor’s address in accordance with the prescribed form as required by Regulation 4.02(1) of the Bankruptcy Regulations was “a formal defect or irregularity” (at 252), there had in fact been substantial compliance with the Regulations. After referring to s 306(1) of the Bankruptcy Act, his Honour concluded, at 253, that “[t]he bankruptcy notice cannot be regarded as capable of misleading and accordingly cannot be said to be a nullity”. I would, for the same reason, conclude that the bankruptcy notice in this case was not a nullity by virtue of any suggested formal defect or irregularity. It is evident that any such defect could not have caused “substantial injustice” of the kind referred to in s 306(1) of the Bankruptcy Act.

39    Ms Sopikiotis disputed that the debts were genuine, but, as the Federal Magistrate observed, allowing that he was not engaged in a trial of the issue, there was ample evidence before him to make out a prima facie case that the debts were in truth owing.

40    Ms Sopikiotis advanced a number of other arguments in this Court that were not apparently advanced before his Honour in the Federal Magistrates Court, including that the VCAT order was not a final judgment or final order for the purposes of s 40(1)(g) of the Bankruptcy Act and that an impermissible rate was applied to determine interest on outstanding liabilities. Apart from the fact that these arguments were not advanced before the Federal Magistrate, there is no sufficient basis shown to indicate that they might have a tenable basis. See, for example with respect to a “final judgment”: s 40(3) of the Bankruptcy Act and s 121(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Further, as the Federal Magistrate pointed out to Ms Sopikiotis, some of these issues might appropriately be raised with the second respondent as trustee of the bankrupt estate.

41    Finally, it was clearly open to his Honour to find that Ms Sopikiotis had not provided any satisfactory explanation for her delay in seeking to review the Registrar’s sequestration order. As already stated, Ms Sopikiotis filed her application to review the sequestration order on 26 September 2012, which was some 14 months after the order was made on 5 July 2011. She was aware of the creditor’s petition in June 2011, having attended hearings concerning it then. Unless granted an extension, Ms Sopikiotis had 21 days after the sequestration order was made in which to file her review application: see Federal Magistrates Court (Bankruptcy) Rules 2006, r 2.03(1). The delay was lengthy when compared with the stipulated period. As the Federal Magistrate indicated (FMC 2013 Reasons at [10]), at a hearing on 8 November 2012, another Federal Magistrate had put Ms Sopikiotis on notice that she would need an extension of time before she could proceed to seek review and this in turn required her to explain her delay. Her explanation was that she acquired information in mid 2012 that, in her opinion, would have prevented the making of the sequestration order in July 2011.

42    As the Federal Magistrate noted, however, there was evidence that Ms Sopikiotis knew of the sequestration order in July 2011 and, by May 2011, of the VCAT debt and the bankruptcy notice. Before his Honour, Ms Sopikiotis did not specifically identify the information that she said had not come to her notice until mid 2012, but which, in her opinion, would have prevented the making of the sequestration order. In this Court, Ms Sopikiotis said that she had discovered that, in the VCAT, Owners Corporation had filed an incorrect address for her, which meant that she had not known of the hearing that led to the VCAT order on 21 April 2010. She did not explain her failure to acquire such information before mid 2012. As already noted, however, Ms Berman’s affidavit of 10 December 2012, filed in the Federal Magistrates Court, evidenced that Owners Corporation had taken all reasonable steps to notify Ms Sopikiotis of the progress of the VCAT proceeding. Ms Sopikiotis’ later application for review of the 21 April 2010 decision, filed in the VCAT on 21 May 2012, was unsuccessful, as was a subsequent application to the Victorian Supreme Court for judicial review.

43    At the hearing on 22 March 2013, Ms Sopikiotis also said, for the first time, that, when she first received the creditor’s petition, she mistakenly thought it was a bankruptcy notice. As counsel for the first respondent noted, Ms Sopikiotis was represented by lawyers at the time the creditor’s petition was first on foot and she herself was present at some hearings at which the petition was adjourned. In this circumstance, her statement that she mistook the creditors’ petition for a bankruptcy notice is not credible.

44    For the above reasons, Ms Sopikiotis has failed to establish that, in all the circumstances, the decision is attended with sufficient doubt to warrant being reconsidered by an appellate court. She has therefore failed to satisfy the two-part test applicable where an application for leave to appeal is sought. Accordingly, I would reject the application made by Ms Sopkiotis for leave to appeal against the decision of the Federal Magistrate made on 22 February 2013. The application for leave to appeal is refused, with costs.

Associate:

Dated:    18 April 2013